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2019 (6) TMI 1034 - CESTAT MUMBAIDiversion of goods imported for exhibition instead of re-export - appellant have used ATA Carnet route by importing, under the guise of exhibitions at Delhi and Mumbai, and diverting the same without payment of duty instead of re-exporting - HELD THAT:- In the instant case, it is clear that M/s Billiards Tulsa Inc USA have the Carnets No.US 5/97 09282 and US 5/97 09296; a Guarantee was given by the FICCI for the importation of the same in terms of the Notification No 157/90-Cus dated 28-3-1990 and agreeably M/s Billiards Tulsa Inc USA have applied to Ministry of Finance, seeking permission to sell the goods in domestic market on finding unable to export. In case of any violations, by M/s Billiards Tulsa Inc USA, like selling the goods to M/s J.K. International Revenue was free to take action as per law to recover duty and other dues if any as per the law laid down therein. If M/s J.K. International have sold the goods in domestic market and realized Customs duty, Revenue could invoke suitable provisions of Law to recover that amount from M/s J.K. International. It is not open to department to recover the duty from M/s JK International in terms of proviso to Section 28 of Customs, Act, 1962. Therefore, to that extent, the show cause notice and the order is not maintainable. As the demand made on M/s J.K. International is not sustainable under Section 28 of Customs Act, 1962, we are not going in to the merits of valuation of the goods. Imposition of penalties - HELD THAT:- There is force in the submissions made by the Learned AR that Shri Jeetendra Shah, in his statement recorded during investigation, stated that he along with Shri Mukesh J. Shah and Shri R. D. Mehta had supervised the imports under ATA Carnet; all the imports were at the behest and directions of Shri Mukesh J. Shah and he acted as per directions of Shri Mukesh J. Shah; Billiards of Tulsa sold all the machines to M/s. J. K. International, which were subsequently sold to M/s. Galaxy Fun world Pvt. Ltd. It is pertinent to note that the statement was not retracted and therefore, has evidentiary value - both M/s J.K. International and Shri Jeetendra H Shah have rendered themselves liable for penalty under Section 112 of the Customs, Act, 1962, however quantum is reduced. As it is held that duty cannot be recovered from M/s J. K. International under the provisions of Section 28 of Customs Act, 1962, consequentially question of penalty under Section 114 A doesn’t arise. Appeal allowed in part.
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